Ane v Salt Real Estate Ltd [2023] PGSC 59; SC2410 (24 May 2023)

SC2410

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 35 OF 2022

BETWEEN:
ALA ANE
in his capacity as the Acting Registrar of Titles,
Department of Lands and Physical Planning
First Appellant

AND:
BENJAMIN SAMSON
in his capacity as the Secretary, Department
of Lands and Physical Planning
Second Appellant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Appellant

AND:
SALT REAL ESTATE LIMITED
Respondent

Waigani: Hartshorn J,
2023: 19^th & 24^th May

SUPREME COURT APPEAL – practice and procedure - Application to extend time to appeal – appeal filed out of time – appeal has no utility – appeal dismissed

Cases Cited:
Ume More v. UPNG [1985] PNGLR 401 at 402
Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156
Barrick (Niugini) Ltd v. Nekital (2020) SC1996

Counsel:

Mr. D. Aigilo, for the Appellants
Mr. S. Kati, for the Respondent

24^th May, 2023

1. HARTSHORN J: This is a decision on a contested application which seeks amongst others, to extend the time in which an appeal from a decision made in a judicial review proceeding may be filed.

Background

2. The appellants appeal a National Court judgment which granted an application for judicial review and amongst others, ordered that the cancellation of the respondent’s title over a certain property was quashed.

3. The appellants concede that their appeal was filed out of time. They now apply for amongst others, to extend time in which an appeal may be filed. The respondent opposes the appellants’ application and submits that the substantive appeal should be dismissed as it has no utility.

Consideration

4. As to the relief sought in [1.1] of the application made pursuant to Order 11 Rule 9 Supreme Court Rules, Order 11 Rule 9 provides for an applicant to be able to apply to a Judge for directions in certain circumstances. Here, the appellants do not seek any directions. The appellants seek orders for leave to file and serve an appeal out of time.

5. The appellants submit that what is sought are directions in terms of the orders sought in the application. That, however, is not what is stated in the application. The appellants also apply for leave pursuant to Order 11 Rule 9. Order 11 Rule 9 does not provide for an application for leave to be made. The appellants conceded that their purported application for leave was an error. No application was made by the appellants to amend their application before the court.

6. By not seeking directions, by seeking relief that is not available under Order 11 Rule 9 and by seeking leave which is not stated in Order 11 Rule 9 to be required, the appellants have not enlivened the jurisdiction of this court to grant the relief which they seek in their application.

7. The same comments apply to reliance by the appellants on s. 185 Constitution. Section 185 Constitution enables the Court to give ad hoc directions. No directions are sought by the appellants and the appellants seek relief that is not available under s.185.

8. As to the relief sought in [1.2.1], the same comments apply to the reliance upon Order 11 Rule 9 Supreme Court Rules and s. 185 Constitution. Relief is sought which is not available under that Rule and Section. In regard to the reliance upon s.155(4) Constitution, that section may be relied upon in aid of the enforcement of a primary right: Ume More v. UPNG [1985] PNGLR 401 at 402; Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 at [11]. Here, the appellants have conceded that their appeal was filed out of time. They therefore no longer have a primary right to appeal to enforce.

9. Consequently, for the above reasons, the application of the appellants is incompetent and should be struck out.

10. Notwithstanding that the application should be struck out as referred to, I consider the application further.

11. Order 11 Rule 9 Supreme Court Rules may only be relied upon for directions where a person desires to take a step in proceedings under these Rules and the manner or form of the procedure is not prescribed. The step in the proceedings which the appellants desire to take is to seek leave to file and serve an appeal out of time. The appellants submit in effect, that the manner or form of the procedure to be followed to enable an application to be made after the prescribed period to appeal has expired to extend the time in which an appeal may be filed, is not prescribed.

12. Reliance is placed by the appellants upon the judgment of Logan J in University of Papua New Guinea v. John Rosso (2022) SC2219. In that judgment his Honour was concerned with an extension of time to file a notice of objection to competency under the Supreme Court Rules. His Honour commented that Order 10 Supreme Court Rules did not make express provision for a notice of objection to competency or the time by which such a notice should be filed. His Honour ordered amongst others, an extension of time.

13. In this instance, s. 17 Supreme Court Act prescribes the time within which an appeal may be filed and also states, “or within such further period as is allowed by a Judge on application made to him within that period of 40 days.” Further, Order 7 Rules 1 and 2 Supreme Court Rules prescribe the procedure for applying for a further period of time within which to lodge a notice of appeal.

14. The time within which a notice of appeal shall be given is prescribed. It is also prescribed that a further period may be allowed within which to give a notice of appeal. It cannot be said that the procedure for filing an appeal or for applying for an extension of time to file an appeal has not been prescribed. An example of this procedure being followed is demonstrated by the case of Barrick (Niugini) Ltd v. Nekital (2020) SC1996.The applicant in that instance followed s. 17 Supreme Court Act and Order 7 Rules 1 and 2 Supreme Court Rules in making an application to extend time to appeal to the Supreme Court a decision made in judicial review proceedings. As the manner to make application to extend time to appeal is prescribed as referred to, Order 11 Rule 9 is not able to be relied upon as it has been by the appellants.

15. Further, the order which the appellant seeks, is in conflict with s. 17 Supreme Court Act as an application to extend time must be made within the subject 40 days. There is no provision in s. 17 or any other provision of the Supreme Court Act which gives power to the court to hear an application after the subject 40 days to extend time within which a notice of appeal may be given.

16. This court cannot give directions under Order 11 Rule 9 Supreme Court Rules, if they had been sought, to the effect that an application to extend time in which an appeal may be filed may be made after the subject 40 days. To give such directions would have the court disregard or override a statute which provides otherwise. This Court does not have the power to disregard or overrule or amend a statute, for instance as to a specified time, unless a statute or the Constitution gives the court that power. Simply put, an applicant cannot achieve by obtaining directions that is contrary to a statute.

17. Consequently, for all the above reasons the application of the appellants is dismissed. Given this, it is not necessary to consider the other submissions of counsel in regard to the application apart from as to costs. The respondent seeks costs on an indemnity basis. I am not satisfied that it has been properly established that such an order should be made.

18. As referred to, the appellants have conceded that their appeal was filed out of time. The respondent seeks that the appeal be dismissed as the appeal has no utility. The appellants have not made any submissions to the effect that notwithstanding that their appeal serves no utility as it is conceded that it has been filed out of time, that it should not be dismissed.

19. In the circumstances, I am satisfied that this appeal serves no utility as it is conceded that it has been filed out of time, that the appeal has been filed out of time and that the appellants are now unable to apply to extend time in which to file an appeal. Consequently, I am satisfied that this appeal should be summarily determined.

Orders

20. The Court orders that:

a) The application of the appellants’ filed 12^th May 2023 is dismissed.

b) The costs of the respondent of and incidental to the said application shall be paid by the appellants.

c) This appeal is summarily determined pursuant to Order 13 Rule 16(1)(c) Supreme Court Rules.

d) The costs of the respondent of and incidental to this appeal shall be paid by the appellants.
__________________________________________________________________
Jaminan and Partners Lawyers: Lawyers for the Appellants
Craneworth and Cartwright Lawyers: Lawyers for the Respondent